Questions about the FBI's new guidelines

March 9, 1983

Surely few Americans could disagree with the premise that violence by terrorist and/or political groups must not be allowed to occur within the US. In this regard, it is up to national and local law-enforcement agencies - such as the FBI and police departments - to protect the public order. But what is equally clear is that, because these policing agencies have been given a special responsibility to ensure public order, it is essential that they themselves operate strictly within the letter of the law - rather than in violation of existing laws as often happened during the late 1960s and early 1970s.

Hence questions need to be raised by lawmakers, the legal community, and the American public about the scope of new guidelines for the FBI pertaining to political groups, guidelines announced this week by the Rea-gan administration.

Asking such questions is not to challenge the role of FBI Director William Webster, who is widely credited with bringing a sense of professionalism to the agency after the turmoil of the Watergate years, and who, given his judicial background, has been sensitive to constitutional rights. Indeed, it is because the new FBI has made so many moves to repair its image of overstepping its own rules that it would be unwise to adopt policies perceived as retreating, however slightly, into the discredited practices of the past.

The new guidelines constitute the first changes since former Attorney General Edward Levi promulgated rules for the FBI back in the Ford administration. Arguing that the Levi rules effectively prevent FBI agents from investigating ''violence-prone'' groups, the administration says that the new guidelines allow agents to investigate statements that advocate criminal activity or suggest ''an apparent intent to engage in crime, particularly crimes of violence.'' The new rules also allow the FBI to let an informer or agent infiltrate a group in the preliminary stages of an investigation, before there is ''reasonable indication'' that a crime will be committed. Currently, such an infiltration is prohibited.

The Supreme Court has ruled that free speech is protected until such time as the remarks by a political extremist actually incite or lead to violence. Thus, what lawmakers must determine is whether the administration's new guidelines may not be encroaching on protected First Amendment rights.

One other aspect warrants examination. That is the issue of who authorizes investigations. Under the administration rules, the director of the FBI or his designated assistant director can authorize and renew investigations. But should not responsibility be left with the attorney general himself? Or only granted after order of a court? Congress should examine these issues with care.